Introduction

The Respondent-father applied to vary the interim child support order because of a change in his income. He sought to vary the order so that instead of $415 per month, he would only have to pay the Applicant-mother $89 per month. The Applicant opposes this motion and asks for it to be dismissed on the ground that she believed the Respondent is intentionally underemployed,

Background

The year after separation the Respondent was working as a Senior IT Analyst with a base salary of $88,420. With overtime hours his income for 2018 was $138,658.00. In the summer of 2018, the Respondent applied for a “IT Operations Team Leader” position which increased his base salary to $93,231.00 but did not give him the option of overtime hours. The Respondent stated that he expects this dip in his income to only be temporary as he continues his career growth. The Applicant states that for the past 7-8 years the Respondent has been making over $100,000. Her position was that he only accepted this management position in 2019 in an attempt to diminish his responsibility to pay child support.

Analysis

Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, sets out that a court may impute income to a spouse that is “intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child”. Justice Laurie Lacelle concluded that it is reasonable to expect that this new position will present other opportunities for the Respondent which may be of benefit to his children and their future support. Ultimately the section 19(1)(1) analysis was decided on the balance of probabilities as to whether or not this promotion was taken with a view to advancing the Respondent’s career.

Conclusion

This case highlights the fact that intentional under-employment is a nuanced analysis. Courts will not automatically impute income to any party that is earning less than they have previously. Instead Intentional underemployment is examined as what is reasonable for the parent in the circumstances of their specific situation.

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